55. There is, however, some uncertainty as to
the scope of the Act. In late 2002 we obtained a figure of 1,587
non-Christian places of worship registered under the Registration
of Places of Worship Act 1855[63];
but it is not clear whether all these are properly so registered
or whether the figure is comprehensive of all those so entitled.
It is, in any case, a moving target. In many countries there has
been dispute about what is or is not a religious belief and, as
an example, the Scientologists have received different treatment
in different jurisdictions. The doubts are formulated in various
contexts: charitable status, recognition in the prisons, relief
from taxes, discrimination against members of certain "religions"
in their applications for public sector employment, etc. In the
UK, the law derives from Lord Denning's judgement in the Segerdal
case in 1970[64].
He said that a place of religious worship has to be -

"a place of which the principal use is as a
place where people come together as a congregation or assembly
to do reverence to God. It need not be a God which Christians
worship. It may be another God, or an unknown God, but it must
be reverence to a deity. There may be exceptions. For instance,
Buddhist temples are properly defined as places for meeting for
religious worship."

This test (the "Segerdal" test) could cause
problems for non-theistic religions if they wished to avail themselves
of the protection afforded by the ECJA, though it would be for
the courts to decide what additional exceptions there might be
to the deity test apart from Buddhism.

56. The European Convention on Human Rights recognises
the right to freedom of religious belief in conjunction with absence
of discrimination (Articles 9 and 14). Under Article 1 of the
Convention, the UK is under a duty in international law to secure
the rights to everyone within its territory. Of course, under
the Human Rights Act 1998 Parliament can still legislate in such
a way as to be incompatible with the European Convention if it
wishes to do so, and has no legal or constitutional duty to amend
the law to avoid incompatibility; but the UK may face criticism
if the law is not conducive to the enjoyment of the rights.

57. The question is whether this is achieved
within the framework of the ordinary law, or whether some additional
or specific protection such as the ECJA is needed for the ceremonies,
sacred places and artefacts of religion.

The facts upon the basis of which these prosecutions
were brought, except in one or two recent cases, can no longer
be discovered. The penalties were fines, community service orders
or conditional/absolute discharge.

59. Many of the incidents which occur in religious
buildings or in their vicinity are susceptible to prosecution
under more recent statutes, provided of course that the CPS tests
as to sufficiency of evidence and the public interest are satisfied.
It may be useful to give some examples:

· We have
not received any evidence of acts of desecration which did not
constitute some other offences.

· Persons
intent on opposition to a religion, or just wantonly, may cause
damage to buildings or to the burial ground, tombstones or other
parts of the surrounds of the church, mosque, synagogue, temple
or other religious centre. Legislation on criminal damage would
be broad enough to deal with such damage or any damage occasioned
by forced entry (which may not be burglary, if none of the statutory
intentions are present), in order to carry out some act of desecration,
perhaps some aspects of the desecration itself and certainly actions
such as breaking windows, daubing statues and spraying graffiti
on the building itself or on tombstones.

· In turn,
Public Order legislation can be used to prosecute for interruptions
to ceremonies or burials or threats or harassmentof officiants.
Actual assaults, threats and harassment are all existing offences.
If such offences were serious enough to fall within the ECJA,
modern legislation would more than match its penalties, although
it would still allow them to be tried in the Magistrates' Court.
Yet there are features
of the venue or ceremony which, because of their solemnity and
the feelings of those in attendance, could emerge as aggravating
factors for the sentencing tribunal. If that is not sufficiently
evident as a general proposition, sentencing guidelines could
be promulgated to accompany the demise of the ECJA. A fall-back
position is available in bringing an offender before a court for
a breach of the peace.

60. Other factors in concluding that the Act
is no longer relevant are:

· Not
a single instance has been drawn to the Committee's attention
of the use of the ECJA in relation to non-Christian places of
worship, even though synagogues, gurdwaras and mosques have been
targeted by desecrators.

· In the
case of Christian churches, despite considerable effort, the Committee
was only able to unearth details of three convictions classified
under the heading of the ECJA, and in two of them the defendants
were finally convicted of a different offence. The third was the
case of Mr Peter Tatchell (Chapter 3, paragraph 27 above).

· It should
not constitute a criminal offence if a sacred object is temporarily
purloined and used for a secular or profane purpose and then restored
undamaged, resulting in no charge of criminal damage being brought;
or where religious premises are used for some improper purpose.

· Some
would say that the congregation or communityoffended in
this way should exercise the tolerance (which witnesses say exists)
among many faith communities: we presume that rituals or other
means are available to purify premises, to eliminate the sacrilege
or to reconsecrate a building or other artefact.

61. These considerations lead to the view that,
should new legislation on religious offences be contemplated,
the opportunity should be taken to rid the Statute Book of a criminal
offence which has been superseded by subsequent legislation, which
is not familiar territory to all prosecutors (or indeed the public
at large), and which does not appear to be of sufficient significance
for any comprehensive statistics to be kept.

63. The relatively small number of prosecutions
may be at least in part because of a lack of awareness that the
Act can be invoked by all faiths, its archaic language and its
unfamiliarity to prosecutors, as well as the ability to invoke
other legislation instead. There remains however the possibility
of some incident which, while causing serious offence to the congregation
or the adherents of a faith, does not constitute one of the modern
criminal offences, but is still currently susceptible to prosecution
under the 1860 Act. This incident might take the form of some
sacrilegious action taking place at a time when nobody was present
to be insulted and in the course of which no actual damage was
caused, but the impact of which affronted an entire religious
community. Examples of such an affront would be the deposit, at
a time when custodians and worshippers were absent, of pork in
a mosque or synagogue, a dead cow in a Hindu temple, or excrement
on a communion wafer in a Christian church.

64. Section 2 of the Act encompasses riotous,
violent or indecent behaviour (in its meaning of improper or irreverent),
during the celebration of divine service or at any other time.
This problem will not beset some faiths and, plainly, has no relevance
to those who believe in no faith at all. As for those it does
affect, it has been drawn to our attention by National Churchwatch[67]
that places of worship, except for those belonging to the Church
of England, are not public places during any service. So a person
entering such a place does so on a deemed licence; this can be
withdrawn and somebody in authority can call the police. There
are some churches and cathedrals which have prepared leaflets
printing the text of s. 2 of the ECJA. This attempts to dissuade
those who eat or smoke in the church; and others who come in improperly
dressed. It could deal with youths skateboarding around the church
or tourists who refuse to abide by church rules. Whether a similar
leaflet quoting s. 4A of the Public Order Act[68]
would be equally useful has not yet been put to the test.

65. The replacement of the ECJA in a modern form,
perhaps as one ingredient in a new Bill, would demonstrate that
Parliament does indeed care about religious beliefs and recognises
that worshippers open their doors to all-comers in order that
they may participate in, or at least observe, these religious
ceremonies. It would recognise, most importantly, that religious
ceremonies are hallowed, the source of spiritual sustenance and
emblems of community coherence. The buildings, artefacts and surroundings
are imbued with a similar significance. These are aspects of the
freedom of thought, conscience and religion which, in their own
right, deserve protection by law against desecration and mindless,
or mindful, abuse. If Parliament is to turn its mind to religious
hatred, it must not fail at the same time to think about a corresponding
measure to include offences dealt with under the 1860 Act, and
thereby demonstrateits recognition of and support for
the sincere and profound religious convictions of many people
of many faiths.

66. On the narrow point about creating an offence
of those sacrilegious actions which do not fall within the scope
of other modern offences, there is little room for argument that
any such restrictions would be permitted under Articles 9 or 10
of the European Convention on Human Rights.

67. Such an updated offence would not be difficult
to devise and would fill any perceived gaps in the law should
prosecutors see fit to pursue some offensive conduct. The Committee's
researches are not the right source for drafting a new law, but
one possible model could come from the Fijian Penal Code. This
was closely based on Lord Macaulay's Indian Penal Code. In Chapter
XVI of the Fijian Code ("Offences against religion")
there are four misdemeanour offences: damaging, destroying or
defiling a place of worship (s.145); disturbing a religious assembly
(s.146); trespass to burial places (s.147); and writing or uttering
words with intent to wound religious feelings (s.148). As with
the Indian Code, the offences in Fiji are not limited to protection
of the Christian religion. For example, s.145 reads (in full):
"Any person who destroys, damages or defiles any place of
worship or any object which is held sacred by any class of persons
with the intention of thereby insulting the religion of any class
of persons or with the knowledge that any class of persons is
likely to consider such destruction, damage or defilement as an
insult to their religion, is guilty of a misdemeanour".

68. It would be possible to build upon the first
three, at least, of the Fijian formulations. But whatever the
precise form, it would be the opportunity to reinforce the sense
of importance accorded to revered ceremonies and objects, and
to restate Parliament's firm view that it supports matters of
faith. It would also emphasise the ratification of Article 9 of
the European Convention and Article 18 of the International Covenant
on Civil and Political Rights (ICCPR), and would reflect the Church
of England's report in 1988, drawn up by the committee chaired
by the then Bishop of London, which spoke of the need to protect
all faiths. Legislation on these lines would have to be accompanied
by an identification process which may well not accord exactly
with either the Registration of Places of Worship 1855 Act's or
the Charity Commissioners' demarcation lines. There could in consequence
be litigation to establish the principles and boundaries, but
this ought to be ephemeral: Lord Denning's judgement in Segerdal
has now lasted for over 30 years.